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I will not dispute that Baude’s piece was worth reading, but thoughtful only if one is to agree that tortured logic raises to some level of thoughtfulness. It’s hard to separate the analysis from the application, particularly in cases that result in state sanctioned homicide. Application of Baude’s analysis to other than death penalty cases may be a regrettable necessity given the realities of limited resources and time he cites. But it can not be the case, as Scalia suggests, that it ever ‘no longer matters whether there is new evidence of innocence,’ when we are dealing with possible execution. If anything, constraints (of resources, time, and human fallibility) must logically dictate that a penalty of death can never be acceptable. There are other places in the Constitution to turn to to support this, as well as other extra-legal resources (have you considered signing this? http://catholicmoraltheology.com/a-catholic-call-to-abolish-the-death-penalty/). Baude’s conclusion that the legislature and lobbying are the answer to the “actual innocence” problem deserves it’s own lengthy treatment, but in short, in practice it is so incredibly ignorant to the realities of Washington that it can and should be dismissed on its face without even addressing the absurdity of citizens lobbying the legislature to give judges the ability to consider actual innocence.

You and I disagree about the merits of Will Baude’s piece. I don’t find the logic to be tortured, and I agree that judges should not set the limits of their own power.

The legal acceptability of the death penalty and its moral acceptability are two different things. I oppose the death penalty, as a moral matter, under almost all circumstances. But I do not think it is unconstitutional, and I do not think courts should stray beyond the limited authority that they have to ensure that death sentences are ordered only pursuant to law. With respect to the Troy Davis execution, I do not think the Supreme Court had any warrant for issuing a stay case last week–a view apparently shared by Justice Stevens, according to this news report.

Thank you for bringing the theologians’ petition to my attention. It is not something I would sign, because I do not agree that lawmakers should immediately repeal AEDPA, which is what the petition calls for. I wonder if all of the signatories to the petition understand AEDPA; I doubt it very much.

As for lobbying and legislatures, I think most of this is to be done on the state level rather than the federal level. Further, the stances that people take may surprise you. For example, here in Virginia, Thomas Haynesworth has the support not only of two Commonwealth’s Attorneys, but also Attorney General Ken Cuccinelli.

The death penalty may be constitutional, but it is surely cruel…and I pray that it soon becomes unusual enough that courts will have to reconsider its status in a civilized society. As civilized as we may be in the meantime, I would argue that logic (legal or otherwise) that performs the intellectual gymnastics required to justify state sanctioned murder in the face of potential innocence can be nothing other than tortured.

In the case of Troy Davis, the fact that Justice Stevens thinks that “the court had no option but to uphold the decision,” should not be understood to mean that he thought it the right decision.

The AEDP is a perfect example of what can happen when fear and politics make law. The legislature through statute and statutes of limitations, and the courts through interpretation have essentially rendered habeas rights near meaningless (as the merits are difficult to reach), while politicians are able to campaign on the backs of the victims (who had little voice in the system before being accused, and even less of one now) and judges sit back and are able to claim “we had no option…” While it is surprising, in the case of Haynesworth, that the Commonwealth’s Attorneys and the Attorney General supported his petition, it is shocking that in the absence of such unlikely support a demonstrably innocent man in this case, could and likely would have remained in prison. The system “worked” in this case because of an exception and in spite of the rules. (sidenote…1996 was a particularly bad year for prisoners rights, with both the AEDP and the PLRA)

I understand the difference between legality and morality and fear I will have to achieve a greater acceptance of the difference to survive in this field. I just wish there did not seem to be a developing chasm between legality and justice, with all the requisite thoughtfulness to allow for a distance and complacency at the top that is seen and experienced as cruelty (however it is justified) at the bottom.